Is the Bahlul case coming apart?

Posted Wed, May 8th, 2013 3:02 pm by Lyle Denniston

The court case that the Obama administration has been pursuing in an attempt to gain added power for military commissions to try war crimes has grown a bit shaky, as the Guantanamo Bay detainee involved first said he wanted to withdraw the case and then his lawyers said he had changed his mind. It is unclear at this point whether that will make any difference as the D.C. Circuit Court moves toward a ruling in a potential prelude to Supreme Court action.

The en banc Circuit Court has agreed to consider whether the military commissions functioning at Guantanamo have any power to try cases involving alleged terrorist activity that occurred before Congress explicitly made such conduct a war crime. A three-judge Circuit Court panel denied that authority in a ruling last October, leading to a vigorous challenge by the administration. The en banc court set aside that panel ruling on April 23, and began a new review (see this post).

About a week before that order came out, however, the detainee involved — a Yemeni national, Ali Hamza Ahmad Suliman al Bahlul — gave a guard at Guantanamo a hand-written letter saying he wanted to withdraw his court challenge to his war crimes conviction, and to revoke any authorization to a lawyer. He said he had not been coerced into writing the letter.

When his lawyers got word of that letter, one of them, Michel Paradis, went to Guantanamo and, after a session with Bahlul lasting about two hours, Paradis said that his client “stated in no uncertain terms” that he wanted to continue the case in the D.C. Circuit. The court was notified of that in a letter from his lawyers on Monday. They asked the court to disregard the Bahlul letter.

His attorneys volunteered to share with the court, in private, the discussions they had with him at Guantanamo, if the court wanted to pursue the matter further. In that event, they said, they might be seeking a delay in the present briefing schedule for the case.

Under the court’s en banc review order, the Bahlul attorneys’ brief is due in less than three weeks — on May 24. The court is scheduled to hold a hearing on the case on September 30.

It is unknown why Bahlul would have asked to withdraw his case; he had already won the panel decision overturning his commission convictions, and it is the government that is pressing the case further. Justice Department lawyers have argued that the panel ruling in Bahlul’s favor could have an impact on virtually every war crimes prosecution the government is planning at Guantanamo.

The core issue in the case — Congress’s power to pass retroactive laws to establish new war crimes against foreign nationals — has been considered one that the Supreme Court would probably want to resolve. The commission system, in both its form as established by the George W. Bush administration, and in the modified form that Congress adopted at the request of President Obama, has been troubled by a seemingly unending series of glitches and complications.

Now, it appears, the Bahlul case may develop into another of those difficulties as the government seeks to sort out war crimes prosecutions.

Upcoming Oral Arguments

3/31Kimble v. Marvel Enterprises, Inc. Whether the Court should overrule Brulotte v. Thys Co., which held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se”.

4/20Johnson v. United States Whether possession of a short-barreled shotgun is a violent felony, leading to a longer prison term as a career criminal.

4/21McFadden v. United States A federal prosecutor’s duty to prove that a suspect knew that a substance was an illegal substitute for a banned drug.

4/22Horne v. Department of Agriculture The federal government’s duty to pay raisin growers for an order requiring removal of part of a year’s crop from the market to stabilize prices.

On Monday afternoon Justices Anthony Kennedy and Stephen Breyer testified before the House Appropriations Committee. The purpose of the hearing was to discuss the Court’s budget for the next fiscal year and the federal judiciary, but the legislators also took full advantage of the occasion to touch on other topics as well.